Memo On The Unconstitutional Use Of Public Money By Irish Governments In Constitutional Referendums

This memo details aspects of the McKenna judgement, the Coughlan case, two key legal battles waged by private citizens in the ongoing war for fairness in our media and by our government during Referenda and other government campaigns

MEMO ON THE UNCONSTITUTIONAL USE OF PUBLIC MONEY BY IRISH GOVERNMENTS IN CONSTITUTIONAL REFERENDUMS

by Anthony Coughlan

This Memo gives the background to the McKenna and Coughlan cases on fair referendum procedures and draws attention to the fact that violation by Irish Governments of the "McKenna principles" which were laid down by the Supreme Court in 1995 first occurred under the Fianna Fail Government in the two Lisbon Treaty referendums.
It was then repeated by the present Coalition Government in the "Fiscal Treaty" referendum last May and in the recent Children's referendum, when it was successfully challenged by Mr Mark McCrystal.
The individual judgements of the five Supreme Court judges concerned in the McCrystal case are
to be given on 12 December.

"WE WILL FIX THAT STALINIST BODY" ... Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001

AND HOW THEY FIXED IT: In December 2001 the then Fianna Fail Government put a Bill through the Oireachtas amending the 1998 Referendum Act so as to remove from the Referendum Commission its function of setting out the relevant arguments for and against any proposed constitutional amendment in an objective and fair manner. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of this amendment Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the media at the time. Fine Gael and Labour voted against the Fianna Fail Government's amendment. They included 10 deputies who since have become Ministers in the present Government.

1. IRISH CITIZENS AS LEGISLATORS: Irish constitutional referendums are a form of direct legislation in which citizens are voting either to accept or to reject a Bill to amend the Constitution that has been put before them by the Government of the day. Citizens voting on a Referendum Bill are in an analogous position to TDs and Senators voting on Bills put before the Oireachtas (Legislature) by the Government. Once the Government has put a Bill before the people by instituting a referendum it is clearly illogical, unfair and undemocratic for that same Government to use public money, which comes from citizens on both sides on any referendum issue, to advance the point of view of one side.

To do that is analogous to using public money to induce parliamentarians to vote in a particular way, or to give a metaphorical box of chocolates to each voter at general election time so long as they vote for the Government. It is of course constitutionally quite legitimate of Governments to spend public money on the Referendum Commission so as to enable it ensure that citizens are properly informed of the referendum issues, as was the case before the Commission was significantly emasculated by the Fianna Fail Government in 2001 when the Commission's function of setting out the pros and cons of any proposed constitutional change was taken from it.

2. NO PUBLICLY FUNDED GOVERNMENT "INFORMATION" CAMPAIGNS IN THE 11 REFERENDUMS HELD BETWEEN 1937 AND 1987: In the 11 constitutional referendums which were held between the adoption of the Constitution by popular referendum in 1937 and the Single European Act referendum in 1987, no Irish Government spent public money advocating a particular result. Of course Government Ministers and TDs were and are entitled to campaign individually in referendums and to spend their personal and party funds in support of the constitutional change which the Government they belong to is seeking to bring about. But that is quite different from spending taxpayers' money for that purpose.

Most people will agree that it would be quite undemocratic and unconstitutional of a government to use public money, in principle without limit, to try to persuade citizens in a referendum to vote to restore the death penalty, to alter the voting system, to extend its own lifetime indefinitely or to abolish the judiciary.

Yet if public money can be spent in pursuit of a Government desire to change the Constitution, such spending would in principle be valid. Clearly once a constitutional amendment has been put before the people for decision the Government which does that should be exceptionally scrupulous in respecting the rights of citizens in their legislative role and not try metaphorically to twist their arms, or to confuse or mislead them as regards the implications of the constitutional change it is within the people's absolute right to accept or reject.

3. THE 1987 HAUGHEY GOVERNMENT WAS THE FIRST TO ACT UNCONSTITUTIONALLY IN REFERENDUMS: The first time that an Irish Government spent public money in a one-sided fashion in a referendum was in the Single European Act referendum in May 1987. This came about as a result of the Crotty judgement of the Supreme Court. The constitutional amendment to permit the ratification of the SEA would almost certainly have gone through without difficulty, but to make assurance doubly sure the then Haughey Government spent large sums of public money on newspaper and billboard advertisements setting out "Ten Reasons for Voting Yes". These were placed by the Government Information Bureau.

4. THE McKENNA CASE 1995 Š CITIZENS' RIGHTS TO FAIRNESS, EQUALITY AND DEMOCRACY IN REFERENDUMS: In the 1992 Maastricht Treaty referendum on the adoption of the euro-currency and related matters the Albert Reynolds-led Government of the time farmed out its "Vote Yes" campaign to a private advertising agency. This plastered the country with publicly financed billboards urging a Yes, among them one which proclaimed: "A Vote No Disempowers Women." Patricia McKenna, who had supported Raymond Crotty in his case on the SEA Treaty, challenged the constitutionality of this one-sided taxpayer-financed expenditure. Her case was dismissed by Mr Justice Declan Costello in the High Court. As this judgement came virtually on the eve of the Maastricht referendum, she did not appeal it.

With remarkable public-spiritedness Ms McKenna revived her case on the unconstitutionality of spending public money in a one-sided fashion in referendums when it came to the Divorce Referendum three years later, even though she personally and her then party, the Greens, were on the same Yes-side on divorce as the then Bruton-Spring Government. Again Ms McKenna lost in the High Court before Mr Justice Ronan Keane, who declined to overthrow Justice Costello's High Court judgement of 1992. On appeal to the Supreme Court however she won her case and that Court laid down the so-called "McKenna principles" setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.

5. THE 2000 COUGHLAN CASE ON REFERENDUM BROADCASTS : The Supreme Court judgement in McKenna was given just one week before the 1995 Divorce poll and the Bruton-Spring Government had to pull its extensive taxpayer-financed Yes-side advertisements on the weekend prior to voting. This made political party broadcasts on radio and TV all the more important for the Yes-side in the last days of that referendum campaign. As all the Oireachtas political parties were on the Yes-side on Divorce, this led to a situation in which 42 minutes of free broadcasting time on RTE were given to the Yes-side in the five days leading up to the poll as against 10 minutes to non-party groups on the No-side. A similar imbalance had occurred in previous EU and other referendums when all or most political parties were on the Yes side in these.

Although Anthony Coughlan was not involved in the Divorce referendum, he believed that this imbalance in free broadcasting time was in breach of the statutory obligation on RTE and other broadcasters under the Broadcasting Acts to be objective, balanced and "fair to all interests concerned" in their coverage of all issues of public controversy and debate. In a referendum every individual citizen is of course an "interest concerned".

Accordingly he complained to the Broadcasting Complaints Commission that RTE was in breach of its statutory obligations by permitting this 42-minute/10-minute imbalance of time in the final days of the Divorce referendum. The Broadcasting Complaints Commission rejected his complaint. He then sought judicial review of this rejection on the grounds that the Complaints Commission had erred in law. Mrs Justice Catherine McGuinness granted him this in the High Court. In the subsequent trial of the action in the High Court Mr Justice Paul Carney found that RTE had indeed breached its obligations under both the Broadcasting Acts and the Constitution and that there should be broad equality in the broadcast treatment of both sides in referendums so far as free and uncontested broadcasts were concerned.

6. DR GARRET FITZGERALD AND MR BOB COLLINS Š NO "STOP-WATCH" PRINCIPLE REQUIRED: RTE had no particular love of party political broadcasts and RTE management under its then Director-General Mr Bob Collins had no desire to appeal Justice Carney's judgement in the Coughlan case. However Dr Garret FitzGerald, supported by Mr Billy Attley and Mr Desmond Geraghty, who were members of the RTE Authority at the time, persuaded the Authority to insist that RTE Management should lodge an appeal, for reasons which are described by Mr Bob Quinn, who was also on the RTE Authority, in his book "Maverick: A Dissident View of Broadcasting Today" (Brandon Press, 2001). In the event RTE's appeal failed and the Supreme Court upheld Justice Carney's High Court judgement.

Commentators often misrepresent the Coughlan judgement as requiring RTE and other broadcasters to allocate exactly equal time as if by by stop-watch as between Yes-side and No-side proponents in referendums. This is a perverse misreading of what the judgement required. The Coughlan case related to free or uncontested broadcasts - "party political" broadcasts as they are often called. Broadcasters are statutorily required to be balanced and fair as between all interests concerned in ALL their current affairs programming at ALL times, and not just in referendums. Since the Coughlan case RTE has carried no free broadcasts in referendums, thus ensuring equality of treatment for both sides, although there is nothing legally to prevent it allocating such broadcasts equally between leading proponents of each side on these occasions or to umbrella groups on each side if such should exist.

7. THE ORIGINAL REFERENDUM COMMISSION Š THE 1998 REFERENDUM ACT: The establishment of the Referendum Commission under the 1998 Referendum Act was not a necessary consequence of the McKenna judgement. Strictly speaking all that that judgement required was a return to the 1937-1987 situation when political parties, non-party groups and individual citizens did their own referendum campaigning and spent their own money without the Government using public money for the side which Ministers supported. The Referendum Commission was however a piece of creative institutional engineering which had the potential of making Ireland an international pioneer in the democratic political education of its citizens in referendums.

Section 3(1) of the 1998 Referendum Act gave the Commission three principal functions: (a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed; (b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and (c) to foster and facilitate public debate and discussion on the proposal. The Act laid down that these three functions should be carried out by the Commission in a manner which was "fair to all interests concerned".

For the Referendum Commission to do a proper job in carrying out these statutory functions it needed to be given enough time to do its work properly and to be set up well in advance of any particular referendum. It needed sufficient public resources to finance that work and common sense indicates that it should not be overloaded with different unrelated referendum propositions which it had to publicise at the same time. However, it looks as if the politicians in Government, having put through the 1998 Referendum Act, had second thoughts about the Commission's remit when it came to its first outing, for the Commission was given an impossible task from the start.

8. THE REFERENDUM COMMISSION'S FIRST OUTING Š THE AMSTERDAM TREATY AND GOOD FRIDAY AGREEMENT REFERENDUMS 1998: The first Referendum Commission was called into being with retired Chief Justice T. A. Finlay as its chairman to publicise the Amsterdam Treaty referendum in May 1998. The secretary of the Commission informed this writer some years later that Mr Justice Finlay had in mind to fulfil the Commission's task of fostering debate and discussion by holding a grand national debate in Dublin Castle between leading proponents of the Yes and No sides on the Amsterdam Treaty and using clips from that debate for subsequent TV adverts illustrating the two points of view. This would have made the adverts realistic and might have engaged citizens' attention. But then Mr Bertie Ahern's Government gave the Referendum Commission the Good Friday Agreement referendum - a wholly different issue - to publicise on the same day and such plans had to be scrapped.

In the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, one on the death penalty and one on the International Criminal Court. Dr Garret FitzGerald remarked in one of his Saturday Irish Times columns at the time: "Is not the Government looking for another constitutional amendment to give to the Referendum Commission?" This idea of a fourth proposition was dropped as the Labour Party would not support it.

There can be little doubt that the Government's motivation in having multiple referendum propositions was to hamper the Commission in carrying out its functions as laid down in the 1998 Act, for the Commission had to explain to citizens what each of these three different constitutional amendments entailed and to put forward the main arguments for and against in each case. Its task was virtually impossible when there was insufficient time and multiple referendums, sometimes on contentious issues. In their reports following each referendum Mr Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which Governments expected them to carry out their statutory functions.

9. REMOVING THE REFERENDUM COMMISSION'S FUNCTION OF SETTING OUT THE RELEVANT PROS AND CONS OF CONSTITUTIONAL CHANGEŠTHE 2001 REFERENDUM ACT: Following the victory of the No-side in the first Nice Treaty referendum in June 2001 Mr Bertie Ahern's Fianna Fail Government decided to remove the Yes/No function from the Referendum Commission altogether and to remove also the Commission's function of fostering and facilitating public discussion of the issues. To minimize public attention to this major development the Government chose the last day before the Oireachtas rose for the Christmas holidays in December 2001 on which to do this. On that day, 14 December, with just two days notice to the Opposition, it put all stages of the Referendum Bill 2001 through the Dail and Seanad in a couple of hours.

This new 2001 Referendum Act removed from the Commission its function of preparing and publicizing a statement setting out the relevant Yes-side and No-side arguments in referendums. It left the Commission with its original function of publicizing a statement on what the referendum was about. And it substituted for the function of facilitating debate on the issues a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll. These are the two functions the Referendum Commission now has.

The Referendum Bill 2001 was passed by 58 votes to 40 on its second reading. Fine Gael and Labour, together with the Green Party and Sinn Fein TDs, voted against the Government's proposal. Those voting against included 10 deputies who are Ministers in the present Fine Gael-Labour Government.

10: THE DEMOCRATIC VALUE OF THE REFERENDUM COMMISSION'S YES/NO FUNCTION: The democratic value of the Referendum Commission having to set out the main pros and cons of any proposed constitutional change fairly and impartially was that false, irrelevant or extraneous arguments on the pros and cons of the referendum proposition necessarily had to be excluded from the Commission's information material.

The Commission had to be satisfied that the arguments put forward on each side were validly grounded in the actual constitutional amendment being proposed and in legitimate hopes or fears which citizens might have with regard to it. Obvious fallacies or irrelevancies or ad hominem arguments such as urging a Yes or No vote because some allegedly obnoxious person or party was on the other side could not be publicized by the Referendum Commission, although these are commonplace among private contestants in referendums and elections.

In Irish referendums the Government and Yes-side forces are seeking to change the Constitution, while the No-side elements are seeking to conserve it, to prevent change. It is presumptuous from a democratic standpoint to seek to prejudge the result and predetermine the outcome of referendums by effectively taking money from one side for the benefit of the other. There are always valid pros and cons to any proposal for constitutional change. At the extreme, even if opinion polls show a change to be desired by an overwhelming majority of citizens, there will always be some who will oppose any referendum on cost grounds.

A further effect of the Referendum Commission having the function of setting out the relevant pros and cons of proposed constitutional amendments was that when private interests on each side were aware that the main arguments for and against would be put fairly and honestly before the public through the Commission's advertisements, big-league private money had no incentive to intervene. At the same time the political parties and civic interests on each side continued to spend their own money as they had done in all referendums since 1937.

The first referendum to be held following the removal of the Referendum Commission's function of setting out the pros and cons was the second Nice Treaty referendum in October 2002. On this occasion private funders, including private and public companies, weighed in in a big way, such that it has been reliably estimated that advertising by the Yes-side outweighed that on the No-side by a factor of ten to one.

On this second time round, moreover, the amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence - both issues being put forward as one consolidated proposition on which citizens had to vote either Yes or No, for they could not vote on each of its elements separately. Thus if citizens wanted to preclude the State joining an EU defence pact, they had to vote Yes to ratify the Treaty of Nice. If they wished to vote No to the Nice Treaty they also had to vote No to the amendment preventing the State joining an EU defence pact. The Referendum Commission then had to explain to citizens how this "trick" dual proposition would affect the Constitution, and because of this duality the Referendum Commission's explanations, neutral and objective though they were, necessarily tended to ratchet up votes for the Yes side.

11. TAXPAYER-FINANCED GOVERNMENT "INFORMATION" CAMPAIGNS SEPARATE FROM THOSE OF THE REFERENDUM COMMISSION Š ATTORNEY-GENERAL PAUL GALLAGHER'S ADVICE IN THE 2008 AND 2009 LISBON TREATY REERENDUMS:

In the 11 constitutional referendums which were held between the Supreme Court's 1995 judgement on one-sided Government expenditure in McKenna and the 2008 and 2009 Lisbon Treaty referendums, no Irish Government attempted to run "information" campaigns alongside or parallel to the Referendum Commission's statutory-based campaigns to inform citizens what the referendums were about.

The first breach of the McKenna principles by an Irish Government occurred in the 2008 Lisbon Treaty referendum. On this occasion the Government through the Department of Foreign Affairs issued a booklet with the title "EU Reform Treaty". The "Reform Treaty" was the Department's name for the Lisbon Treaty which the booklet purported to describe. This was a highly selective and tendentious document which carried the following slogans on its cover that clearly amounted to implicit advocacy: "effective democratic union", "progress and prosperity", "peace and justice in the wider world", "a union of values". Inside it summarised the provisions of the Lisbon Treaty under such headings as "increased democratic controls" and "equality between Member States".

The Foreign Affairs Department also placed newspaper advertisements featuring the booklet's cover. These possibly had more influence on voters than the booklet itself. There was also a Foreign Affairs web-site which like the booklet implicitly pointed to the desirability of a Yes vote in the referendum even if neither booklet nor web-site urged explicitly "Vote Yes". Similar material was produced for Lisbon Two in 2009.

Presumably the then Attorney General, Mr Paul Gallagher SC, advised the Fianna Fail Government of the day that these actions did not breach the McKenna principles. Presumably too the present Government decided to follow the practice of its predecessor when it came to referendums. And presumably the current Attorney-General, Ms Maire Whelan, decided to follow her predecessor Mr Gallagher's advice in relation to the taxpayer-financed "information" booklet, brochure and web-site which sought to influence the "Fiscal Compact" referendum in May 2012 and the Children's referendum this November.

The booklet issued by the Department of Foreign Affairs in the Fiscal Compact/Fiscal Treaty referendum in May 2012, which was posted to all households in the State at public expense, was tendentiously selective like its predecessor at the time of Lisbon. It purported to describe the so-called "Stability Treaty", even though the Treaty in question was generally referred to across the EU as the "Fiscal Treaty" or the "Fiscal Compact Treaty", its full title being the "Treaty on Stability, Coordination and Governance in the Economic and Monetary Union". The first page of this booklet was titled "What is the Stability Treaty?". Inside it was described as a Treaty which aimed "to support growth and employmentŠto protect the public's moneyŠ and to be part of a toolkit to avoid another economic crisis". Again these were tendentious phrases that clearly constituted implicit advocacy and were legitimately open to being questioned by No-side proponents who took a different view to the Government's on the content and effects of that treaty.

These Government "information" campaigns using public money unconstitutionally were not challenged in the Courts at the time of the Lisbon and "Fiscal Compact" referendums. They were successfully challenged by Mr Mark McCrystal in the Children's referendum held on 10 November 2012. Two days before that referendum the Supreme Court ruled that the booklet, advertisements and web-site issued by the Government in the Children's referendum were in breach of the Court's 1995 judgement in McKenna. The individual judgements of the five Supreme Court judges who upheld Mr McCrystal's appeal are to be given on 12 December 2012.

A referendum run in accordance with the McKenna principles is in accordance with best current international practice in this matter.

Author's Note: Anthony Coughlan was a supporter of the late Raymond Crotty and Patricia McKenna in their constitutional actions in 1987 and 1995 respectively. He was plaintiff in the 2000 Coughlan case on free referendum broadcasts. He has been involved on the No side in EU-related referendums but was not involved in the other referendums mentioned. He is Director of the National Platform EU Research and Information Centre and is former Senior Lecturer in Social Policy, TCD.

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